dismissed EB-3 Case: Nursing

U.S. Citizenship 
and Immigration 
Services 
MATTER OF O-P-M-
Non-Precedent Decision of the 
Administrative Appeals Office 
DA TE: DEC. 4, 2018 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETlTION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a staffing provider, seeks to employ the Beneficiary as a registered nurse. It requests 
.her classification under the third-preference, immigrant category as a skilled worker. lmmigration 
and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 ~.S.C. § I l 53(b)(3)(A)(i). This 
employment-based, "EB-3" category allows a U.S. business to sponsor a foreign national for lawful 
permanent resident status to work in a position requiring at least two years of training or experience. 
The Acting Director of the Nebraska Service Center denied the petition and the Petitioner's 
following motion to reopen. The Director concluded that the Petitioner did not demonstrate its 
required ability to pay the position's proffered wage or the approvability of the accompanying 
application for labor certification. 1 We summarily dismissed the Petitioner's appeal because, 
contrary to regulations, the filing did not assert an erroneous conclusion of law or statement of fact. 
Matter ofO-P-M-, ID# 1559380 (AAO June 11, 2018). 
The matter is before us again on the Petitioner's motions to reopen and reconsider. The Petitioner 
submits additional evidence and argues that, before the Service Center transforred the matter to our 
office, the company timely submitted a brief explaining the basis of its appeal. 
Upon review, we will deny the motions. 
I. MOTlON CRITERIA 
A motion to reopen must state new facts, supported by documentary evidence. 8 C. F. R. 
§ 103.5(a)(2). In contrast, a motion to reconsider must establish our· prior decision's misapplication 
of law or policy based on the record at that time. 8 C.F.R. § I 03.5(a)(3). A motion to reconsider 
must also cite a pertinent precedent or adopted decision, statutory or regulatory provision, or 
statement of USCIS or Department of Homeland Security policy. Id. We may grant motions that 
meet these requirements and establish a petition's approvability. 
1 The U.S. Department of Labor (DOL} has determined that the United States lacks suflicient nurses and that 
employment of foreign nationals in this "Schedule A .. occupation will not harm the wages or conditions of U.S. workers 
in similar jobs. 20 C.F.R. § 656.5.. The DOL has therefore authorized U.S. Citizenship and Immigration Services 
(USCIS} to adjudicate the labor certification application in these proceedings. 20 C.F.R. § 656.15. 
Malter of O-P-M-
II. ANALYSIS 
An appeal must assert an erroneous conclusion of law or statement of fact. 8 C.F.R. § I 03.3(a)(v). 
Here, in February 2018, the Petitioner filed a Form 1-2908, Notice of Appeal, and accompanying 
documentation omitting the basis of its chal1enge to the petition's denial. In the alternative, the form 
indicated: "My brief and/or additional evidence will be submitted to the AAO [Administrative 
Appeals Office] within 30 calendar days of filing the appeal." As our appellate decision stated, 
however, by June 2018, we had not received a brief or evidence. 
On motion, the Petitioner submits its appellate brief and evidence. It also submits delivery records, 
asserting that they demonstrate its timely filing of the documentation in March 2018. The delivery 
records, however, indicate that, contrary to the instructions on the Form 1-2908, the Petitioner sent 
the documentation to the Service Center, not to our office. The record therefore establishes that the 
Petitioner filed its appellate brief and evidence at the wrong location. 
The Petitioner notes that the Service Center did not transfer this matter to our office until after the 
company submitted its brief and evidence. The Petitioner's appellate documentation was not among 
the materials that the Service Center transferred to us. But, regardless of the transfer, the Form 1-
290B clearly instructed the Petitioner to submit any appellate brief or evidence to our office. See 
8 C.F.R. § 103.2(a)(l) (incorporating a form's instructions into the regulations). Because the 
Petitioner submitted its brief and evidence to the wrong location, its appeal did not assert an 
erroneous conclusion of law or statement of fact. As such, the Petitioner has not demonstrated, 
either through the submission of new facts or citation to relevant legal authority, that we erred in 
summarily dismissing the appeal. Therefore, we will deny the motion to reopen and motion to 
reconsider. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Mauer l?[O-P-M-, ID# 1907488 (AAO Dec. 4, 2018) 
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